CRIMES AND PUNISHMENTS. 1073

such convict, upon such recovery of his reason, to be returned to the jail
from which he was removed, and to be confined there until the said term
expires, or may order his discharge, in its or his discretion. The provisions
of this section shall not apply to the Baltimore City Jail.
See sec. 711 and art. 59, sec. 46.

Kidnapping.

An. Code, sec. 283. 1904, sec. 259. 1888, sec. 154. 1809, ch. 138, sec. 4. 1867, ch. 179.

1910, ch. 46 (p. 92).

316. Every person, his counsellors, aiders or abettors, who shall be
convicted of the crime of kidnapping and forcibly or fraudulently carrying
or causing to be carried out of this State any person with intent to have such
person carried out of this State, shall be sentenced to the penitentiary for
not more than twenty-one years.

An. Code, sec. 284. 1904, sec. 260. 1888, sec. 155. 1819, ch. 132. 1910, ch. 46 (p. 92).

317. Every person, his counsellors, aiders or abettors, who shall be
convicted of kidnapping and forcibly or fraudulently stealing, taking or
carrying away any child under the age of sixteen years shall be sentenced
to the penitentiary for not more than twenty-one years.

Larceny.

An. Code, sec. 285. 1904, sec. 261. 1888, sec. 156. 1715, ch. 26. 1809, ch. 138, sec. 6.

1882, ch. 84.

318. Every person convicted of the crime of simple larceny to the
value of five dollars or upwards, or as accessory thereto before the fact,
shall restore the money, goods or things taken to the owner, or shall pay
him the full value thereof, and be sentenced to the penitentiary for not
less than one year nor more than fifteen years; provided, however, that in
in all cases where the money, goods or things taken shall amount to less
than fifty dollars in value, the judge passing sentence shall have dis-
cretionary power to sentence the said person so found guilty to imprison-
ment in jail or in the house of correction instead of the penitentiary.

Where a statute creates an offense which did not exist at common law or changes
the nature or degree of an existing common law offense, the indictment must con-
clude against the form of the statute; contra, if a statute only inflicts a different
mode of punishment for a common law offense. Since act of 1809, ch. 138, repealed
the common law so far as it provided for the punishment of the offense, an indict-
ment merely concluding contra pacem, is sufficient—see sec. 554. State v. Negro
Evans, 7 G. & J. 290. And see State v. Hodges, 55 Md. 137 (decided prior to act,
1882, ch. 84).

A sentence should be framed as near as possible in words of act inflicting the
punishment, but if penalty is in no wise varied by the phraseology of the sentence,
no error is committed; fact that a part of sentence provides that prisoner " serve and
labor " for a certain period in penitentiary, is not error. The restoration of property
forms no part of the sentence proper; if a lighter burden is imposed by a sentence
than the law authorizes, the prisoner cannot secure a reversal on that ground. Isaacs
v. State, 23 Md. 414 (decided prior to act, 1882, ch. 84).

It is inaccurate to say that the restoration of property under this section is a
part of the punishment. It is not design of this section to withhold from the real
owner until conviction of thief the common law remedies for restoration of
property wrongfully taken or for the recovery of value thereof. Action of assumpsit
lies to recover stolen money, and an attachment may issue. Downs v. Baltimore
City, 111 Md. 689.